This report presents the conclusions and recommendations of the Expert Review Group established by the then Minister for Community Safety and Legal Affairs, Roseanna Cunningham MSP, on 27 June 2014 and announced at the British Irish Council meeting in Dublin. The Group were asked to review the current legal framework available to Scottish public authorities to govern the sale and supply of New Psychoactive Substances (NPS) in Scotland. The Group had a deliberate and specific legal focus, but also considered operational and practical aspects, in the context of the existing legal framework. The membership reflects this and a full list of members can be found at Annex A. This final report of the Group is presented to Paul Wheelhouse MSP, the current Minister for Community Safety and Legal Affairs on behalf of Scottish Ministers.
NPS is a description that is given to a group of substances that are designed to mimic the effects of controlled drugs although the contents and chemical composition of these substances can vary. There is not always a clear or accurate relationship between how substances are sold and marketed and the actual products being consumed. Some of these products, although able to be legally sold or supplied for varying purposes, are not safe. Sellers frequently attempt to evade prosecution by marking products as “not fit for human consumption”. The chemical compound can be altered quickly and easily, making it difficult to control these substances under the Misuse of Drugs Act 1971. Once the chemical composition is stable and harms established, it can be captured under this legislative vehicle. Therefore some NPS have been brought into the Misuse of Drugs Act 1971 regime, often following a period of temporary ban resulting in a change of status to a controlled drug. The evidence base on NPS in respect of prevalence and harm is relatively undeveloped compared to controlled drugs, and work is underway to better understand the motivations for and circumstances of NPS use in Scotland, by the Scottish Government and others. NPS use in Scotland is still relatively low compared with other illicit drug use. However, use amongst some sub sections of the population is higher, especially amongst young people. Where NPS are implicated in drug deaths, it is present in most cases with other drugs or alcohol. Notwithstanding this, there were 5 deaths in 2013 where NPS was the sole substance implicated out of a total of 60 deaths where NPS was implicated to some extent.
In bringing successful prosecutions for the sale and supply of NPS in Scotland, it is important that there is a consistent understanding amongst agencies about what NPS are, and what the effects of consumption might be. A set of national standards for definition, measurement and testing, and an agreed framework within which clinicians and enforcement agencies can operate will be helpful in supporting successful enforcement and treatment activity. There is growing evidence of multi-agency working and a range of agreements to share information but these can be enhanced. There is a legislative framework to support prosecutions in relation to NPS, but the Group was asked to examine the effectiveness of this regime, drawing on the work of two enforcement summits convened by the Scottish Government in 2013 and 2014. The Group also recognised the work of a Home Office sponsored Group to review NPS which published its report in October 2014.
The membership of the Group was drawn from a range of expertise in legal, policy and operational backgrounds. Using sub groups and drawing evidence from current practice, the Group considered 3 themes of criminal and civil law, planning and licensing, and consumer protection and trading standards. The Group examined a range of current statutory and common law powers which could potentially be used to tackle NPS. Each provision was subject to detailed consideration as to its usefulness and operational effectiveness.
The Group concluded that there are a number of legal mechanisms potentially available to tackle the sale and supply of NPS, and noted some success in the application of the law to date. In the case of some provisions, the group identified weaknesses that limited the effective application of the legal provision. The Group therefore makes a number of recommendations:
1. A definition of New Psychoactive Substances (NPS) should be developed that can be adopted across all areas in Scotland including: research, academia, NHS Health Boards, enforcement agencies, forensics and toxicology, local and national Government, education, treatment services and others to ensure consistency and a common understanding. Consideration should be given to whether the definition should be based on their chemical compound group (e.g. synthetic cannabinoid, cathinone) or according to their effect (e.g. stimulant, sedative).
2. A national centre of excellence in forensic analysis should be established to lead in the detection and identification of NPS in Scotland. This centre could lead work on the development of national standards for NPS testing across all agencies, where testing relates to a criminal or potentially criminal case. The Centre should share information with hospitals, trading standards and relevant services on emerging trends, building and maintaining the knowledge base on NPS.
3. Information should be shared appropriately and effectively between the recommended national centre of excellence and agencies dealing with NPS issues, including those responsible for gathering information with a view to prosecution. A formal protocol between the relevant agencies should be put in place setting out roles and responsibilities and the circumstances for how information should be shared and the timescales for doing so.
4. The Scottish Government and the Home office should work in partnership to create new legislation that will be effective in Scotland.
5. Licensing authorities should attach conditions and restrictions in relation to the sale of NPS when issuing public entertainment or similar licences. This could be extended to include drug paraphernalia.
6. A tool-kit and operational guidance should be developed in partnership with appropriate stakeholders to assist frontline trading standards staff in tackling NPS.